Rabbi David Kaufman's thoughts on Israel and Current Events in the Jewish world.

Friday, May 9, 2014

Jubilees and Separation of Church and State

Jubilees and
Separation of Church and State

May 9, 2014

Rabbi David Kaufman

This week’s Torah portion, Behar, is almost ideally suited to the
Supreme Court’s decision this week concerning prayer at City Council meetings
in Greece, New York. I do not say this simply because Leviticus Chapter 25
contains the words:

You shall observe My laws and faithfully
keep My rules, that you may live upon the land in security.

These words, if
applied to adherence to the US Constitution and Bill of Rights instead of
religious doctrine, are the essential mission of the United States Supreme Court.
No, instead I refer to the primary topic of this Torah portion, the Jubilee
Year and what the Jubilee Year was all about. First, however, let me discuss
the Supreme Court decision and its implications and then I will connect it to
Jubilees.

Over the years, I
have been and continue to become involved in advocacy for the separation of
church and state. Reform Jews are particularly strong in their advocacy in that
direction and many have expressed concerns about the recent US Supreme Court
decision regarding prayers offered at city council meetings in Greece, New
York. Such prayers have regularly involved the use of language specific to
Christianity and often clearly appear to urge listeners to adhere to Christian
beliefs. In fact, one would have to go out of his or her way to deny that
Christianity is in fact the established religion of Greece, New York because
all such prayers are given by Christians.

As I understand it, a solution was proposed in
which it was argued that prayers could be offered as long as they did not
advocate for a specific religion or that clergy of other faiths could be
brought into Greece from other locales in order to provide diversity. The city
challenged this argument which had been upheld by a lower court as a means to
counter the de facto establishment of religion and the case went to the Supreme
Court which decided in favor of Greece, NY, sending shock waves through the
Separation of Church and State advocacy community.

In recent years, the discussion of Separation of
Church and State has primarily focused on removing religious influence on state
based functions. Essentially, such efforts have promoted the concept of a
secular government, a government devoid of religious based action and bias.
"FreedomfromReligion" has been at the basis of this movement
which argues that the basis of the anti-Establishment clause of the US
Constitution mandates that view.

It would make sense based on this understanding
to ban all official prayers in the context of governmental activities such as
city council meetings or proceedings of state or federal legislatures for
example. One must question whether or not prayer can ever be devoid of advocacy
for a particular kind of faith if not for a particular faith. To argue that
generic theistic prayers are acceptable but prayers that are specifically
Christian are not would certainly raise concern about the violation of the free
exercise clause at a minimum and potentially also the right of Free Speech.

The First Amendment reads:

Congress shall make no law respecting the establishment of
religion, or prohibiting the free exercise thereof.

Politically,
Progressives tend to stress the importance of the anti-Establishment clause,
whereas Conservatives tend to stress the importance of the Free Exercise
clause. Our Supreme Court currently leans 5-4 Conservative and that almost by
itself explains the decision handed down this week, though I will explain in
more detail. There are many cases where the two clauses conflict and the case
of Greece, New York is certainly one of them.

To over simplify the situation, what happens in
Greece, New York regularly appears to violate the establishment clause with
regular clearly Christian prayers being offered, while not violating the free
exercise clause because every minister chooses his or her own wording for the
prayer offered. Whereas the solution proposed by those opposing the City
Council's practice would appear to adhere to the anti-establishment directive,
preventing a situation in which only Christianity is represented or would
violate the free exercise clause by mandating the absence of faith specific
language.

In this specific
case, the practice of offering a prayer at all was never questioned. The
Greece, New York case did not address whether or not such prayers should ever
take place, the question before the court was based on the proposed solution
and seems to have been abouthowone
may pray rather than being about whether or not one may pray in that context.

To put this general argument into the context of
Separation of Church and State specifically, two concerns arise:

1.Should there be
prayer at state functions? This action clearly violates "separation",
but does not necessarily violate "anti-establishment," unless no
diversity is present in which case it would appear to do so.

2.Should there be
restrictions imposed on the religious content of prayers offered? Doing so
would appear to violate the Free Exercise clause.

Here's a direct
quote from Justice Kennedy's opinion in the Greece, NY case:

To hold that invocations must be nonsectarian would force
the legislatures sponsoring prayers and the courts deciding these cases to act
as supervisors and sensors of religious speech, thus involving government in
religious matters to a far greater degree than is the case under the town's
current practice of neither editing nor approving prayers in advance nor
criticizing their content after the fact.

This is in accord
with the Free Exercise clause, i.e. keeping state out of religion. Telling a
minister that he cannot represent his tradition would in fact be state
interference in religion and, I would add, which Kennedy does not, in the
context of both mandating prayers and requiring basic God language, could
functionally in so doing establish Deism as the state religion which would be a
violation of the anti-Establishment clause as well.

As I see it, the
question for advocates of Separation of Church and State is truly focused on
whether or not such prayers should take place at all with the clear
understanding that the context of such prayers being offered overwhelmingly or
even exclusively by Christian clergy will necessarily promote the establishment
of Christianity as the religion of the government.

The fact that it is not within the court's purview to require the council to
bring residents of other cities to offer prayers so as to provide diversity and
avoid de facto establishment of Christianity as the faith of
the city and that the court rightly defends the free exercise of religion does
not excuse the fact that without diversity, the existence of prayers of similar
nature from a single faith establishes that faith as the government's religion.
In other words, the court cannot demand diversity or determine the content of
prayers, but neither can it allow the establishment of a government backed
religion which is the case in Greece, New York.

This case was about how prayers were offered. It was a Free Exercise case, even
though many observers put it in the context of Establishment. The next case
will argue that without accommodation for diversity, the allowance for prayer
in this type of context is de facto
establishment. My belief as both an advocate for the Separation of Church and
State and for the Free Exercise of religion, is that in order to follow the US
Constitution's directive, a city council will have to either provide diversity,
something that the courts cannot and honestly should not mandate that it do, or
not hold such prayers at all as such prayers offered without religious
diversity necessarily results in establishment, something that the court could
in fact demand based upon the anti-Establishment clause.

So how does this all connect to the
Jubliee Year? The Jubilee Year was in theory a time of restoration. Land that
had been sold would be returned to its original owner, debts would be forgiven,
slaves simply declared free. The text tells us, “The land must not be sold
beyond reclaim, for the land is Mine; you are but strangers resident with Me,”
and “For it is to Me that the Israelites are servants; they are My servants,
whom I freed from the land of Egypt.”

The Jubilee Year is about the
understanding that things change over the years, that what should be, often is
not. It is unquestionably true that it has become traditional for the primary
prohibition of the 1st Amendment to the Constitution to be given lip
service while being egregiously violated. There is no doubt that it has been
the custom in many places in America for Christian prayers, regularly with a
limited range of types of Christianity represented, to be offered at events and
meetings held by institutions which in theory should be subject to the both the
liberties and their restrictions enunciated in the US Constitution and Bill of
Rights.

The argument that custom and tradition
makes law is certainly one found within the Jewish tradition. The rabbis of old
treated established customs as if they were dictated by Moses at Sinai. But
that is precisely where Jubilees comes into play.

The Jubilee Year is about warning us
that what should be is not what is, that what has developed over the decades is
not necessarily the way things should be, that customs that have developed over
time, particularly in regard to the treatment of those with less power by those
with more power, should not be allowed to violate the laws upon which they were
based.

Sabbatical years, the seventh year, and
the Jubilee year, the 50th year, may have been part of adjusting the
calendar to bring the 364 day solar calendar into line with the reality of the
cycling of days and seasons. There is no historical evidence that the
Israelites ever put the rules of the Jubilee year into practice, e.g. that
slaves went free or that land was returned. We have no evidence of that.

What we do know is that the idea that
original intent matters in our tradition and that the Torah, unlike later
rabbinical tradition, maintained the concept that customs that have developed
over time should not be allowed to defeat or obfuscate the original intent of
the laws upon which they were based. How much more directly could a Torah
portion be in regard to this week’s Torah portion in which Justice Kennedy,
offering the majority opinion, quoted an earlier case, Marsh vs. Chambers
saying, “the Establishment Clause must be interpreted ‘by references to historical
practices and understandings’.” This is, of course, similar to the fact that the
concept of “people” in the Constitution not all that long ago did not necessarily
include those who by many were deemed less than people, slaves.

No, it is not reasonable to argue that “historical
practices and understandings” or customs and traditions have a veto.

All this said, if you wonder whether or not
the framers of the US Constitution understood the meaning of the Jubilee year or
that it had importance to them, this much is beyond dispute, the words of Leviticus
25:10, from this very Torah portion, are etched on the Liberty Bell:

Proclaim liberty throughout the land unto all the inhabitants
thereof.

The words that immediately follow them, “It
shall be a Jubilee for you.”

1 comment:

The most troubling aspect about the ruling in Greece is exactly as you mentioned, that history and custom somehow trump the Establishment clause. So much for the strict constructionist argument that the Constitution is the first, last and only word.

The second most troubling aspect is that the court seems perfectly willing to subrogate the Constitution to the whims of majority rule: If the majority want a Christian (or Muslim, Jewish or Hindu) prayer, then let that prayer be said.

Both of these establish a dangerous precedent that is chilling in its possible consequences. -- Ira Lacher